R v Cook; Ex parte C

[1985] HCA 47

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI AGAINST THE HONOURABLE ADRIAN GEORGE HINGSTON COOK AND THE HONOURABLE JOSEPHINE MARY HIGHFIELD MAXWELL, JUDGES OF THE FAMILY COURT OF AUSTRALIA; Ex parte C. AND ANOTHER

(1985) 156 CLR 249

1 August 1985

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Custody of ex-nuptial child—Child of marriage—Ex-nuptial child deemed by statute to be child of marriage—Validity—The Constitution (63 &64 Vict. c. 12), s. 51(xxi)—Family Law Act 1975 (Cth), s. 5(1)(e)(i).

Decisions

GIBBS C.J.: This is the return of an order nisi for a writ of prohibition directed to two judges of the Family Court prohibiting them from proceeding further in an application brought by Mr and Mrs T. for the custody of a child and for a writ of certiorari quashing certain orders already made in the course of the proceedings arising out of that application. The prosecutors, Mr and Mrs C., are husband and wife. Mrs C. is the mother of the child, a girl now aged almost twelve, and is the daughter of Mr and Mrs T. Mrs C. was unmarried at the time when the child was born. Since the marriage of Mr and Mrs C. on 3 November 1979, the child has ordinarily been a member of the household of Mr and Mrs C. but, in January 1985, ran away to her grandparents and has since resided with them.

2. The question for our decision is whether the Family Court has jurisdiction to entertain the proceedings instituted by the child's grandparents, Mr and Mrs T. It will have jurisdiction if the provisions of par.(ce) of the definition of "matrimonial cause" in s.4(1) of the Family Law Act 1975 (Cth), as amended ("the Act") and those of s.5(1)(e)(i) of that Act are both valid. This Court has decided, in V. v. V. (unreported), which was heard immediately before the present case, that the provisions of par.(ce) are valid. The matter to be decided in the present case is, therefore, whether s.5(1)(e)(i) is validly enacted.

3. Some of the arguments addressed to us appeared to assume that the merits of the case and the welfare of the child were in some way relevant to the question which we are called on to decide. It should be made clear that this is not so. The Court fully understands how undesirable it is that proceedings concerning the custody of a child should be complicated by doubts as to jurisdiction. However, it is the clear duty of the Court to determine the limits of constitutional power unswayed by any sympathy that may be aroused by the facts of a particular case.

4. Paragraph (e) of s.5(1) provides as follows:

"For the purposes of each application of this

Act in relation to a marriage -

...

(e) a child of either the husband or the wife, including -

(i) an ex-nuptial child of either of them; and

(ii) a child adopted by either of them (whether alone or together with another person or other persons),

if, at the relevant time, the child was ordinarily a member of the household of the husband and wife;

...

shall be deemed to be a child of the marriage and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage."

5. It is now firmly established that, since the protection and nurture of the children of the marriage is at the very heart of the marital relationship, the power given by s.51(xxi) of the Constitution to make laws with respect to "Marriage" enables the Parliament to define and enforce the rights of a party to a marriage with respect to the custody and guardianship of a child of the marriage. The fact that a child is an "ex-nuptial child" of one of the parties to a marriage is obviously not sufficient, in itself, to make the child a child of the marriage. The very name indicates the truth of the situation - that the child is outside the marriage relationship, if no other circumstances exist which would bring it within that relationship. The Parliament cannot give itself legislative power by deeming a child to be a child of a marriage if the necessary connexion between the child and the marriage does not in truth exist: In the Marriage of Cormick (1984) 59 A.L.J.R. 151, at p.153; 56 A.L.R. 245, at p.248. In truth, without more there is no connexion between an ex-nuptial child and the marriage of one of its parents.

6. A further connexion with the marriage power is sought to be found in the concluding words of par.(e), which make the paragraph applicable only "if, at the relevant time, the child was ordinarily a member of the household of the husband and wife". Those words are identical with the concluding words of s.5(1)(f). The provisions of sub-par.(e)(i) and those of par.(f) are similar. Each endeavours to bring about a connexion with the marriage relationship by a combination of two elements. One element, common to both, is that "the child was ordinarily a member of the household of the husband and wife". The other element, in par.(f), is that the child "has been, and was at the relevant time, treated by the husband and wife as a child of their family". In In the Marriage of Cormick it was held that this combination of elements in s.5(1)(f) did not bring about the necessary connexion with marriage to support a law which provided for the adjudication of claims between the parties to a marriage on the one hand and a stranger to the marriage on the other to the custody of a child answering the description contained in the paragraph. The same conclusion should be reached a fortiori in the case of s.5(1)(e)(i). The connexion sought to be made between a marriage and an ex-nuptial child of one of the parties to a marriage is even more tenuous than that between a marriage and a child who was treated by the husband and wife as a child of their family, particularly since the Court in In the Marriage of Cormick was prepared to assume, without deciding, that "family" was used in a narrow sense, and that par.(f) referred to a child treated by the parties to the marriage as a child of their marriage: see at p.153; p.249 of A.L.R.

7. The argument that the concluding words of par.(e) connote a factual situation in which there is the necessary connexion between the child and a marriage was based on the premises that the word "household" meant "family" and that "ordinarily" imported that the relationship was permanent. It was acknowledged that to accept this argument as to the meaning of "household" it would be necessary to disagree with, or at least to distinguish, some remarks made in In the Marriage of Cormick, where it was said, at p.153; p.249 of A.L.R.:

"However it is not made necessary by the provision (s.5(1)(f)) that the parties to the marriage should have treated the child as a member of their family over a period of time sufficient to indicate the permanence of the relationship; it is enough that it was so treated at the relevant time specified in s.5(2), and that at the relevant time the child was ordinarily a member of the 'household' - a wide word which would include any relative, friend or servant ordinarily living in the house."

It was submitted, however, that those remarks were obiter because the judgment in that case continued, at p.153; p.249 of A.L.R.:

"The fundamental objection to the validity of s.5(1)(f) is, however, that it seeks to render the provisions of the Act, such as s.61, which deal, amongst other things, with the rights to custody and guardianship of children, applicable to a situation in which those rights do not arise out of, and do not have any necessary connection with, the marriage relationship."

The reason why the necessary connexion was held to be lacking was given in part in the passage last quoted. That passage formed a necessary part of the reasoning leading to the conclusion in that case and was not obiter. In any case, even if "household" were understood to mean "family", that would not be enough to support the validity of the provision. A family may, of course, include persons other than the parties to a marriage and their children - unmarried persons, living together, may have a family, and the family of married persons may include other relatives than children. Whatever may be the meaning of "family" in par.(f), it is not possible to regard the words "ordinarily a member of the household" in par.(e) as equivalent to treated as a child of the marriage.

8. A law regulating the rights and duties of the parties to a marriage (at least vis-a-vis strangers to the marriage) with respect to the guardianship, custody and maintenance of children is a law with respect to marriage only if the children have the status of children of the marriage, through birth, legitimation or adoption: see In the Marriage of Cormick, at pp.153, 155; pp.248, 253 of A.L.R. The question whether the same result would follow in the case of a de facto adoption was there left open: see at p.153; p.248 of A.L.R. It was argued in the present case that s.5(1)(e)(i) in effect describes the situation which exists when there has been a de facto adoption. However, the words of the paragraph do not go so far; they do not require that both parties to the marriage should have treated, and intend permanently to treat, the child as a child of the marriage or, if it matters, that the child should have regarded himself or herself as a child of the marriage. The fact that sub-par.(e)(ii) refers expressly to adoption suggests that sub-par.(e)(i) does not intend to include cases of adoption. It is not possible to read down sub-par.(e)(i) to make it refer to de facto adoptions. The question whether a sufficient connexion with marriage would exist if the law applied to children who had been adopted de facto must therefore be left open.

9. For these reasons the provisions of the Family Law Act which attempt to create, define or declare the rights of the parties to the marriage as against strangers to the marriage, or the rights of strangers to the marriage as against the parties to the marriage, to the custody of an ex-nuptial child deal with rights which do not arise out of the marriage relationship and have no sufficient connexion with it. The provisions of s.5(1)(e)(i) are not validly enacted, except possibly in so far as they may extend the provisions of the Act to the definition of the rights and duties of the parties to a marriage as between themselves. It follows that the Family Court had no jurisdiction to entertain the application made by the grandparents in the present case.

10. The order nisi for prohibition should be made absolute. It is unnecessary to make an order for certiorari.

MASON J.: Even if the marriage power extends to making provision for the rights of the parties to a marriage with respect to the custody of an ex-nuptial child of one party which is to all intents and purposes a de facto adopted child of the marriage - a question on which I express no opinion - s.5(1)(e)(i) of the Family Law Act 1975 (Cth), as amended, goes further because it is not limited in its operation to such a child.

2. The provision attempts to bring an ex-nuptial child of one party to the marriage within the legislative regime governing children of the marriage by deeming such a child to be a child of the marriage "if, at the relevant time, the child was ordinarily a member of the household of the husband and wife". Parliament cannot bring a child which is outside the reach of the marriage power within the power by deeming the child to be a child of a particular marriage. The ex-nuptial child of one party to a marriage is not a child of the marriage and it does not become so because at a particular time it is ordinarily a member of the household of the husband and the wife. Section 5(1) draws a distinction between "household" and "family", so that "household" is not synonymous with "family" and has a wider connotation. The result is that s.5(1)(e)(i) is sufficiently wide to deem a child who is not a de facto adopted child of the marriage to be a child of the marriage. It may be that if the provision were limited to an ex-nuptial child which is treated by both parties as a child of their marriage it would be valid.

3. For these reasons s.5(1)(e)(i) is invalid, at least to the extent to which, in conjunction with par.(ce) of the definition of "matrimonial cause" in s.4(1), it attempts to make provision for the rights of the parties to the marriage to the custody of an ex-nuptial child as against strangers to the marriage.

WILSON J.: I agree that the order nisi for prohibition should be made absolute for the reasons given by the Chief Justice. I wish merely to add one observation. It will be seen that in his reasons, as in his reasons in In the Marriage of Cormick (1984) 59 A.L.J.R. 151, at p.153; 56 A.L.R. 245, at p.248, the Chief Justice leaves open the question whether a sufficient connexion with marriage would exist if the law applied to children who had been adopted de facto. It seems to me, with respect, that there would be a real difficulty in any attempt to invest a so-called de facto adoptee with the status of a child of a marriage. Adoption necessarily involves the extinction of the legal rights and obligations of the natural parents to the guardianship and custody of the child. Such an extinction of legal rights and obligations cannot be achieved de facto. It requires the operation of law. If all that is shown is that the parties to a marriage have taken into their home, apparently on a permanent basis, a child who is not a child of their marriage by birth, legitimation or legal adoption, and treated the child in all respects as if he or she was a child of their marriage, the legal rights and obligations of the natural parents would nevertheless not be affected. The serious question that then arises is whether, by a law with respect to marriage, the Parliament can deem that child to be a child of the marriage of those persons into whose home the child has been received and in so doing extinguish the legal rights and obligations of the natural parents and invest new rights and obligations with respect to the child in the parties of the marriage. As at present advised, I believe that both in principle and on authority (Cormick) that question must be answered in the negative.

BRENNAN J.: Nurture of the children born of the union of husband and wife is at the heart of the marriage relationship: Russell v. Russell (1976) 134 CLR 495, per Jacobs J. at pp 548, 549; In the Marriage of Cormick (1984) 59 ALJR 151; 56 ALR 245, per Gibbs C.J. at p 152; p.247. The marriage power therefore supports a law affecting the guardianship custody and maintenance of the children born of a marriage ("aspects of the nurture of children within the marriage relationship" as Jacobs J. said), not because some or most spouses exercise their authority in respect of their children and perform the obligations which they owe to them, but because authority in respect of the children born of a marriage and the existence of obligations owed to the children born of a marriage are aspects of marriage regarded as an institution.

2. The spouses have the primary authority in respect of the children born of the marriage and are primarily responsible for their nurture. The primacy of the spouses' authority and obligations is both a hallmark of the relationship of marriage (recognized by s.61 of the Family Law Act 1975 (Cth)) and, at least in our society, the natural form of family organization. Persons other than the parents are not entitled to impair parental authority or obligations except pursuant to a valid statute or under an order of a court of competent jurisdiction. The spouses' authority in respect of and obligations owed to a child who belongs to another family or in respect of whom another parent has authority or to whom another parent owes obligations (whether or not that authority is exercised or those obligations are discharged) is not the same as the authority the spouses have in respect of their own children and the obligations they owe to their own children. The distinction is indicated by the descriptive terms nuptial and ex-nuptial. The distinction does not depend alone on the recognition of another parent's authority and obligation; it depends also on the existence of the natural relationship of that child with his or her parents.

3. Every child, whether born of a marriage or of a union between a man and woman who are not married, derives his or her own identity from the parents and from them the child is entitled to expect love and a sense of security. The relationship of a child with his or her natural parents, even if they are not married, is recognized and, to an extent, protected by equitable rules (Reg. v. Nash (1883) 10 QBD 454; Barnardo v. McHugh (1891) AC 388; Shaw v. Ipatoff (1957) 97 CLR 248) if not by the rules of the common law (cf. Humphrys v. Polak (1901) 2 KB 385). That relationship, important for the parents and essential for the child, makes the child a member of the family of his or her parents.

4. If a husband and wife adopt a child, the natural parents (or the natural parent who is not one of the spouses) are no longer entitled to exercise authority in respect of the child and no longer bound to perform any obligation owed to the child. After adoption the child must look for identity, love and sense of security to the family of the husband and wife. An adopted child's position is thus comparable with the position of the children born of the union of husband and wife: in either case the husband and wife exercise the primary authority in respect of the child and bear the primary responsibility for the child's nurture. These are the natural and permanent features of the relationship of husband and wife with the children born of their union and when those features mark the relationship of husband and wife with adopted child, the adopted child is properly regarded as a member of their family: the child is no longer a member of any other family.

5. If the marriage power were to be regarded as supporting a law relating to the guardianship custody and maintenance of children who are not, but whom the law deems to be, children of a marriage, the relationships of children with their natural parents would be amenable to alteration or extinction by reason of the marriage of a husband and wife neither of whom or only one of whom is the child's parent. The connection between marriage and a law which would alter or extinguish the relationship between a child and both its natural parents or which would authorize a court to alter or extinguish that relationship is too tenuous, in my opinion, to support the validity of the law under s.51(xxi) of the Constitution.

6. Jacobs J. in Russell v. Russell, at pp 549-550, stressed the difference between a law for the welfare of children generally and a law relating to the guardianship custody and maintenance of children born of a marriage. A law of the latter kind is -

" a branch of the law governing the relationship of the spouses between themselves and between them and their children begotten of their union. The distinctness of the laws governing children of a marriage has tended to become obscured by statute law of the past century designed to ameliorate the position of children generally, including children of a marriage and more recently to assimilate the position of children born outside marriage with the position of children of a marriage. However, the distinctness in subject matter must still be observed when the question being considered is the extent of constitutional power."

7. In In the Marriage of Cormick I expressed the opinion (at p.155; p.253) to which, for the reasons stated, I adhere:

" ... the rights and duties of husband and wife in respect of children who do not enjoy the status of children of their marriage - whether by birth, by legitimation or by adoption - are not, in my opinion, amenable to regulation by a law for which the marriage power alone provides support."

8. In my opinion children described in par.5(1)(e)(i) of the Family Law Act are not children of a marriage and a provision deeming them to be so is not a law with respect to marriage. As the marriage power alone is relied on to support par.5(1)(e)(i), it is invalid. For the reasons stated in V. v. V. (unreported) par.(ce) of the definition of "matrimonial cause" contained in s.4(1) of the Family Law Act is a valid law. The orders nisi for prohibition and certiorari should be made absolute.

DEANE J: The argument for the applicants on the return of this order nisi for prohibition and certiorari comprised an attack upon the validity of two distinct provisions of the Family Law Act 1975 (Cth) ("the Act"). In each case, the ground of attack was that the relevant provision was beyond the legislative power of the Commonwealth Parliament. The validity of the first of those provisions - par.(ce) of the definition of "matrimonial cause" in s.4(1) of the Act - was subsequently upheld by the decision of the Court in V. v. V. (unreported, 11 July 1985). There remains for determination the question of the validity of s.5(1)(e)(i) of the Act. The relevant legislative power of the Parliament is that conferred by s.51(xxi) of the Constitution, namely, the power to make laws for the peace, order and good government of the Commonwealth with respect to "Marriage".

2. Section 5(1)(e)(i) provides that, "(f)or the purposes of each application of (the) Act in relation to a marriage", an ex-nuptial child of either the husband or the wife shall be deemed to be a child of the marriage "if, at the relevant time, the child was ordinarily a member of the household of the husband and wife". The main operation of that provision is to make applicable, to an ex-nuptial child who comes within its terms, the scheme of the Act governing the guardianship and custody of, and access to, children of a marriage. It is that operation of the provision which is under challenge in the present case. Its validity turns upon whether or not the extension of the law which it would effect can properly be characterized as a law with respect to marriage.

3. The scope of the legislative power conferred by s.51(xxi) is governed by the meaning of the word "Marriage" in the context of the sub-section. It is now settled that, in that context, "Marriage" is not to be understood in the narrow sense of connoting merely the ceremony or procedure by which two persons become husband and wife under the law (see Attorney-General (Vict.) v. The Commonwealth (the Marriage Act Case) (1962) 107 CLR 529). The reference to "Marriage" in par.(xxi) is to the institution or relationship of marriage and what is involved in it (see Russell v. Russell (1976) 134 CLR 495, at pp 526 and 547-548). As Gibbs C.J. pointed out in Marriage of Cormick (1984) 59 ALJR 151, at p 152, 56 ALR 245, at p.247 in a judgment which was supported by the majority of the Court, it "is now well settled that 'marriage' in s.51(xxi) includes the relationship or institution of marriage and, since the protection and nurture of the children of the marriage is at the very heart of the relationship, that the power to make laws with respect to marriage enables the Parliament to define and enforce the rights of a party to the marriage with respect to the custody and guardianship of a child of the marriage" (see, also, Russell v. Russell, at pp 525 and 548 ff. and Cormick, 59 ALJR, at p 155, 56 ALR, at pp 252-253 (per Brennan J.)). That being so, there lies at the heart of the legislative power conferred upon the Parliament by s.51(xxi) the definition of rights and obligations arising from the marriage relationship including the rights and duties of the parties, both as between themselves and as against third parties, with respect to the children of the marriage (see, as to rights against third parties, Dowal v. Murray (1978) 143 CLR 410; Fountain v. Alexander (1982) 150 CLR 615). To quote again from the judgment of the Chief Justice in Cormick (59 ALJR, at p 152, 56 ALR, at p.247):

"The rights and duties of the parties to a marriage, with respect to the children of the marriage, arise directly out of the marriage relationship, and a law defining, regulating or modifying the incidents of the marriage relationship is a law with respect to marriage. This is so, although the law defines the rights of the parties to the marriage to the custody and guardianship of a child of the marriage, not only as between themselves, or between them and the child, but also as against other persons".

4. Once one passes from legislative provisions dealing with the rights and duties of the parties to a marriage in relation to children born of the marriage to provisions dealing with their rights and duties in relation to other children, one has passed from the primary territory covered by the legislative power with respect to "Marriage" and entered an area where validity under s.51(xxi) must depend upon some more particular connexion between what the law does and the subject matter of the legislative power (cf. per Dixon C.J., the Marriage Act Case, at p.543). In such a case, "validity ... must depend ultimately on the degree of (the purported law's) connexion to the marriage relationship" (per Wilson J., Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at p 489). The adequacy of "the degree" of connexion in a particular case must be determined by reference to the challenged operation of the purported law in the sense that there must be reasonable proportionality between the nature and strength of the connexion and the relevant operation of the law. Thus, in Cormick, it was held that a "sufficient" or "necessary" connexion between the relevant operation of a law dealing with custody and guardianship of a child and a marriage was not provided by the mere facts that the child was treated by the parties to the marriage as a "child of their family" and was "ordinarily a member" of their "household": it was said that the connexion was "far too tenuous and insubstantial" (59 A.L.J.R., at pp.152-153, 56 A.L.R., at pp.247-249). To have held otherwise would have been to extend the scope of the "Marriage" power to an extent where it would encompass provisions dealing with the rights and status of children having no relationship by blood or social convention with either party to the relevant marriage or, for that matter, with the marriage itself: the mere fact that a husband and wife treat a child as part of "their family" and their "household" does not necessarily involve any direct or relevant connexion with their marriage. The position is quite different in the case of a child who satisfies the requirements of s.5(1)(e)(i) of the Act, that is to say, in the case of an ex-nuptial child of one party to the marriage who is ordinarily a member of the household of the natural parent and his or her spouse.

5. It is true that, strictly speaking, an ex-nuptial child of a husband or a wife cannot, without adoption or legitimation, become a child of that or any other marriage. If, however, the natural parent of an ex-nuptial child marries someone other than the child's other natural parent and the child is an infant who ordinarily resides in their matrimonial home, the child has a close and direct connexion with that marriage. It is not only that he or she lives in the matrimonial home as a child of one party to the marriage. It is that, as a matter of well-established social custom in this and other countries of the common law world, the child acquires a special familial relationship with the other party to the marriage by reason of the marriage itself. That special relationship is acknowledged, as a matter of ordinary language, by the terms "stepfather" or "stepmother" and "stepson" or "stepdaughter".

6. The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent. With origins in Judaic and Christian teaching (cf. Leviticus 18.8 and Genesis 2.24), it reflects the traditional common law view that, for some purposes, marriage "rendered the husband and wife as one" (cf. Brotherhood of Locomotive Firemen and Enginemen v. Hogan (1934) 5 Fed.Supp. 598, at p 605 and see, generally, Gottliffe v. Edelston (1930) 2 KB 378, at pp 383-387). Its significance has been recognized in a multitude of legislative provisions. Some examples of the subject matter of such provisions are: (i) the obligation to provide or pay for maintenance and support of a stepchild (see, e.g., Children's Services Act 1965 (Qld), s.120; Community Welfare Services Act 1970 (Vict.), ss.3 (definition of "Parent"), 36(1A) and 37(d); Child Welfare Act 1939 (N.S.W.), ss.58 and 59(1) and (2)(b)(ii) (as in force 1939-1980); Department of Welfare of City of New York v. Siebel (1959) 161 NE (2d) 1), including an obligation on the part of a stepfather to make payments to his estranged wife (the natural mother) for the maintenance of his stepchild (see, e.g., Lineham v. Lineham (1974) 1 NZLR 686); (ii) liability in respect of damage caused by a child to which the child's "parent" has contributed "by wilful default or by habitually neglecting to exercise due care of the child" (see, e.g., Children's Court Act 1973 (Vict.), ss.29, 30, 31 and definition of "Parent" in s.3(1); Child Welfare Act 1939 (N.S.W.), s.85 and definition of "Parent" in s.4(1)); (iii) rights to claim compensation for death of or injury to a relation (see, e.g., Compensation to Relatives Act 1897 (N.S.W.), s.7; Workers' Compensation Act 1916 (Qld), ss.3(1) (definition of "Member of a family") and 14(1)(A) and 14B(2)A; Workers' Compensation Act 1971 (S.A.), ss.8(1) (definition of "member of family"), 20 and 49(1), (2) and (6); Mander v. O'Toole (1948) NZLR 909; Halsbury's Laws of England, 4th ed., vol.24, par.404, note 6); (iv) income tax (see, e.g., Income Tax Assessment Act 1936 (Cth), s.6, definition of "child"); (v) incest or carnal knowledge (see, e.g., Rex v. Frith (1914) VLR 658; Crimes Act 1958 (Vict.), s.52(1) and (2); Crimes Act 1900 (N.S.W.), ss.73, 74, 77, 78N and 78O); and (vi) general welfare (see, e.g., Child Welfare Act 1939 (N.S.W.), s.4(1), definition of "Parent"; Child Welfare Act 1947 (W.A.), s.4(1), definition of "parent").

7. The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a "quasi parental" one (see, e.g., Rex v. Frith, at p 660). It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage (see Lineham v. Lineham; Rex v. Frith). The direct connexion between the relationship of step-parent and stepchild and the marriage from which it arises has often been stressed. Thus, it has been recognized that the relationship will only arise if the marriage of parent and putative step-parent was a valid one (see Wilkinson v. Joughin (1866) LR 2 EqCas. 319, at p 322) and it has been held that the relationship will only persist while the marriage, by reason of which it arises, remains undissolved (Mander v. O'Toole, at pp 912-913), at least if there are no children born of the marriage (cf. 2A Corpus Juris Secundum, p 514). If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue (see, e.g., McGaughey v. Grand Lodge A.O.U.W. of State of Minnesota (1921) 180 NW 1001; Brotherhood of Locomotive Firemen and Enginemen v. Hogan, at pp 603-604). It has been said that the word "stepchild" should, in a particular statutory context, be interpreted as "referring to the acquisition of a new relationship by a child when its parent remarries" and "that the child acquires this new relationship towards the person the parent remarries" (see per Lord Sorn, Commissioners of Inland Revenue v. A.B. Russell (1955) 36 TC 83, at p 86).

8. The practical importance and strength of the connexion between a previously born child and the marriage of a parent will, of course, differ from case to case. As a general proposition however, that connexion is likely to be of greatest practical significance in the very category of case to which the provision of s.5(1)(e)(i) is applicable, namely, where the child is an ex-nuptial child who becomes ordinarily a member of the matrimonial household of the parent and step-parent. In such a case, the child does not have a primary and possibly competing connexion with any previous marriage between his or her natural parents. More important, it is in such a case that a child, if an infant, is likely to be most vulnerable to the effects of the marriage or re-marriage of a parent and that the interests, maintenance, care and custody of a previously born under-age child of one party to the marriage are properly and necessarily involved in the marriage relationship between husband and wife. It is in such a case that ordinary standards of morality and social behaviour in this country most clearly require that, having received the child as a member of the matrimonial household, the step-parent accept and discharge the quasi-parental obligations which are implicit in the special relationship of affinity between step-parent and stepchild which arises from the marriage and which are reinforced by a variety of legislative provisions in each of the Australian States (see the examples referred to above). Put differently, the special relationship of affinity, which is an incident of the marriage, is, for better or for worse, of real and practical importance in such a case.

9. As has been mentioned, the operation of s.5(1)(e)(i) here under challenge is that which makes applicable in respect of such an ex-nuptial child the custody and access provisions of the Act on the deemed basis that the child is a child of the marriage between natural parent and step-parent. The effect of those provisions of the Act, when applied on that basis, is to confer a prima facie entitlement to guardianship and custody upon the natural parent and the step-parent. That prima facie entitlement to guardianship and custody is subject to important limitations and qualifications: it will arise or persist only if or while the child is an infant (i.e. under 18 years old) (s.61) and is ordinarily a member of the household of the parent and step-parent (s.5(1)(e)(i)); it is expressly subjected to any order of a court for the time being in force (s.61) and can accordingly be precluded, extinguished or modified at any time by an order for custody or access made under the Act; in proceedings with respect to guardianship, custody or access under the Act, it is subordinated to the welfare of the child which must be regarded as the paramount consideration (s.64(1)(a)). Those limitations and qualifications are designed to protect both the possibly competing claims of others (such as the other natural parent) to guardianship, custody or access and the rights and interests of the child. There may be room for differences of opinion about whether the overall result of the relevant operation of s.5(1)(e)(i) is desirable as a matter of legislative policy. Be that as it may however, that overall result represents a considered legislative adjustment of rights and obligations of guardianship, custody and access to meet the change in circumstances and relationships of an under-age ex-nuptial child consequent upon the marriage of a parent in circumstances where the child becomes ordinarily a member of the household of the parent and step-parent.

10. When the natural parents of an under-age ex-nuptial child do not live together, the primary entitlement and burden of guardianship and custody will ordinarily fall upon the parent with whom the child lives. Indeed, it would be to close one's eyes to reality to deny that in such a case it is as much the exception as the rule for the other natural parent to have any real continuing parental relationship with the child. The practical effect of the marriage of the natural parent in circumstances where the child becomes ordinarily a member of the household of the natural parent and the step-parent is that the natural parent's entitlement to and burden of guardianship and custody is, at least while the child remains ordinarily a member of that household, shared with the step-parent as part of, and by virtue of, the marriage relationship. What the relevant operation of the provision of s.5(1)(e)(i) essentially does is to define and regulate that ordinary incident of the marriage relationship in a way which accords reasonably well with the emerging contemporary view that it is preferable that the relationship between step-parent and stepchild be formalized by orders for guardianship and custody rather than by adoption orders (see, e.g., Patricia Harper, Children in Stepfamilies, Institute of Family Studies, April 1984, and see the Children Act 1975 (U.K.), esp. ss.10(3) and 33 (the latter section to come into operation on 1 December 1985) which reflects recommendations of the U.K. Houghton Committee on the Adoption of Children, 1972). Subject to the qualification mentioned hereunder, the connexion between that operation of the provision of s.5(1)(e)(i) and the relationship or institution of marriage is such as to warrant and sustain the characterization of that operation of the provision as a law with respect to marriage: it is a law with respect to relationships constituting or directly arising from the marriage between the natural parent and the step-parent of an under-age ex-nuptial child who is received as an ordinary member of their household. That being so and subject to that qualification, the relevant operation of the sub-paragraph is within the legislative power conferred by s.51(xxi) of the Constitution.

11. The qualification mentioned in the preceding paragraph arises from the fact that, read literally, s.5(1)(e)(i) would apply in respect of an ex-nuptial child born after the relevant marriage as a result of the adultery of one party to it. Such a child is not, as a matter of ordinary language, a stepchild of the other party to the marriage (see, e.g., Lineham v. Lineham, at p 687). If, as a matter of construction, s.5(1)(e)(i) would extend to such a child, it may be, to that extent, beyond the legislative powers of the Parliament. It is, however, unnecessary to pursue that question in the present case since I would be of the view that, in the event of such partial invalidity, the provision of s.5(1)(e)(i) could be read down to apply only to a child already born at the time of the relevant marriage. It has not been suggested that the provision of s.5(1)(e)(i) is invalid in relation to any other "application of (the) Act" or that, if it were, it would not be possible to read down the provision to exclude any such invalid "application".

12. I would discharge the order nisi.

DAWSON J.: In V. v. V. (unreported, 11 July 1985) I expressed my view that par.(ce) of the definition of "matrimonial cause" contained in s.4(1) of the Family Law Act 1975 (Cth) could not, in conjunction with ss.31(1)(a) and 39(1), validly confer upon the Family Court jurisdiction in proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage where the proceedings were between a stranger to the marriage and a party or the parties to the marriage, save in limited circumstances of the kind dealt with in Dowal v. Murray (1978) 143 CLR 410, Vitzdamm-Jones v. Vitzdamm-Jones (1981) 148 CLR 383 and Fountain v. Alexander (1982) 150 CLR 615. That view, which would be decisive of the present case, did not find favour with the other members of the Court.

2. It is, therefore, necessary to determine the validity of s.5(1)(e)(i) of the Family Law Act under which it is said that the child in this case, an ex nuptial child of the wife but not of the husband, is deemed to be a child of the marriage. It is only if the child is validly deemed to be a child of the marriage that the Family Court has jurisdiction under par.(ce) of the definition of "matrimonial cause" to entertain the application for custody brought in this case by the grandparents of the child.

3. Generally, for the reasons given by Gibbs C.J., I am of the view that s.5(1)(e)(i) does not have a valid operation with respect to the child and accordingly I would make absolute the order nisi for prohibition.

Orders

Make absolute the order nisi for a writ of prohibition directed to the Honourable Adrian George Hingston Cook and the Honourable Josephine Mary Highfield Maxwell, and other Judges of the Family Court of Australia prohibiting them and each of them from proceeding further in the application filed by the applicants in the Family Court in Application No.S339 of 1985.

Order that the costs of the prosecutors and of the respondents Mr and Mrs T. be paid by the Commonwealth.